November 20, 2017

First Amendment panel addresses hate speech

Weeks after the anti-LGBTQ+ posters shocked Cleveland State University, leading to university’s President Ronald M. Berkman holding an impromptu public forum and multiple protests, a panel discussion Thursday Nov. 9, addressed understanding what happened and what happens next. 

The panel discussion, named “Combating Hate within the Framework of the First Amendment,” was a by-invitation event where Berkman began by speaking about the positive aftermath of the controversy. Some of the positives he spoke of were the university’s Board of Trustees backed “Preferred Name Policy” that has begun its comment period, the increased security for the LGBTQ+ Center and four gender neutral bathroom on campus.

“I believe that today is the beginning of the dialogue that is almost implicit for us as a university to lead,” Berkman said. “Our responsibility to our students is to help equip them to deal with the challenges that are here today, that in my estimation, will escalate as we go forward.”

The event contained two separate panels, a legal panel and a political science panel.

The legal panel, moderated by Lee Fisher, the dean of Cleveland-Marshall College of Law, included a comprehensive look into the First Amendment and what is and isn’t covered by it.

Participating on the panel were Kevin O’Neill, a professor at Cleveland-Marshall College of law, Cassandra Collier-Williams, a judge in the Cuyahoga County Court of Common Pleas, and Kylee Gaul, a private practice attorney. 

O’Neill started the conversation with a PowerPoint, explaining the right to free speech. He said the First Amendment does not cover all forms of speech, explaining that imminence of lawless action, obscenity, child pornography, fighting words and true threats are not safeguarded.

That being said, he argued that, in relation to the anti-LGBTQ+ poster found at the university, it would be difficult to prosecute the image as hate speech.

“If the government is going to ban speech, it needs to find one or more unprotected speech categories and to ban the speech that is in those unprotected speech categories,” O’Neill said.

“The problem is that in order to punish a lot of hateful speech, the government often has to do an act of hate speech prohibition that goes beyond these narrow definitions of these unprotected speech categories.”
The discussion then examined if the poster in question could be considered a true legal threat.

O’Neill suggested that because the LGBTQ+ Center opened the same day the posters appeared, it could be considered so, but in his opinion, if it went before a judge it would be a losing argument.

“What a First Amendment lawyer would do is to go through the categories of unprotected speech, of them, true threats unprotected speech category is the one that I find most intriguing,” O’Neill said.
“If you look at the information under that category, it says that courts are required to consider all of the surrounding facts, which means that you wouldn’t just look at the four corners of the poster. You could read [what is said on the poster] as an exhortation to commit suicide.”

He continued to explain that it could be reasoned that there was also an anti-African American element as well because the figure that is picture hanging from a noose has his hands tied behind his back, which could be indicative of being lynched.

“If you look at the way the body is positioned, notice that the hands seem to be behind the back. That is a lynching pose,” O’Neill said. “I still think that this is a weak argument and many judges would reject it, but there is at least a possibility that a judge could say ‘I’m going to let this go to a jury.’”

The political science panel, moderated by Maurice Stinnett, vice president of university engagement and chief diversity officer, deliberated the political perspective of the situation.

Participants included the Rev. Leah Lewis, Charles Hersch, professor in the College of Liberal Arts & Social Sciences, Juan Molina Crespo, executive director of the Hispanic Alliance and Reginald Oh, professor in the Cleveland-Marshall College of Law.

Hersch addressed the inconsistencies in Cleveland State’s policies and how some of them actually conflict with others.

“Allowing such posters to be put up is inconsistent with the university’s own anti-harassment policy, which says the following,” Hersch said. “Conduct that ridicules, denigrates or stereotypes individuals or more than one individual’s conduct, family, friends or lifestyle is prohibited on campus.’”
Lewis and Oh added that more policies also seem to contradict upholding the university’s free speech policy in this case.

This includes the Expressive Activity Policy, which says that college employees will not consider the content of expressive activities, and a Hostile Educational Environment policy, which deals with the situation where severe or pervasive harassment interferes with the ability of a student to participate or benefit from an educational program.

Stinnett noted that the university was in the process of revising its policies and smaller forums, the first of which will be in December, will address these changes.

“We are going to have smaller forums starting in December and we are going to invite 30 to 50 people per session,” Stinnett said. “We want those to be manageable so that we can hear you.”

“During those sessions we will be providing updates on what is happening with those policies,” Stinnett said. “Policies and procedure have a process that they have to go through, but we are committed to being transparent about where they are at in the process.”


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